Tenth Amendment Center » Publicationshttp://tenthamendmentcenter.com
Concordia res Parvae CrescuntTue, 31 Mar 2015 01:11:57 +0000en-UShourly1http://wordpress.org/?v=4.1.1Help us Celebrate our 8 year Anniversary!http://tenthamendmentcenter.com/2014/05/31/help-us-celebrate-our-8-year-anniversary/
http://tenthamendmentcenter.com/2014/05/31/help-us-celebrate-our-8-year-anniversary/#commentsSat, 31 May 2014 10:48:05 +0000http://tenthamendmentcenter.com/?p=23807When I registered the TenthAmendmentCenter.com domain on June 25, 2006 – I thought I had a nice idea for a blog to discuss how the federal government would rarely, if ever, stay within the confines of the Constitution.

Long story short, that blog has grown into something much more. And today, the TAC is not just pointing out failures on the federal level. We also spend considerable time educating people on the founders Constitution, and getting them active to do something about it via nullification.

So on June 25th, 2014 – we’ll be celebrating with the following:

NEW Publication, State of the Nullification Movement: This is a first-of-its-kind white paper giving a full status on the nullification movement in 2014. As Tom Woods mentioned to me in an interview recently, without the TAC tying it all together, people might not realize what’s happening around the country. I’m in the process of writing this now and will have it available for your reading – and sharing – by our anniversary.

EVENT, Ask Me Anything: Every 4-8 weeks, we allow our members to participate in an “AMA” – an online q/a session where members can, well, ask anything they’d like. To celebrate our anniversary, we’re going to hold one of these AMA events for everyone. The date isn’t set – yet – but I expect it to be on the 25th. Stay tuned!

EVENT, Time to Make the Donuts: I have fond memories of that great ad campaign from Dunkin Donuts, where “Fred the Baker” woke up well before dawn to get to work. It showed a relentless dedication to one’s work. Well, here at TAC, that’s not just some ad campaign, it’s what we do every day. And we totally rely on your help to “make the donuts” to keep moving. In other words, we need to pay the bills. Without hitting our $15K fundraising goal in the next 2 months, we’re going to have to start shutting things down piece by piece. So, when you get that email for our fundraiser later this month – or a letter in the mail asking for help – please dig deep and do everything you can to help us make those donuts and keep the doors open!

PROJECTS ON DECK

Provided you’re able to help us cover our base expenses, we’ve got a number of projects on deck for the next 6 months. Primarily, we want to build and expand on our direct outreach and activism in support of specific nullification efforts. This includes:

2nd Amendment Preservation

#NullifyNSA

Nullify Obamacare

Stop Warrantless drone spying

and more.

We’ll update our model legislation to fit more specific needs on a state by state basis, provide more dedicated support for state legislators and grassroots groups alike, and many other behind the scenes steps to get more nullification bills introduced, and passed.

We’re also working on expanding what we’ve already been doing to start campaigns in new areas, and areas that we’ve barely scratched the surface.

Common Core

Constitutional Tender

Asset Forfeiture

Intrastate Commerce

and more.

And, of course, we’re working hard to expand our educational materials. With powerful featured articles, blogs – and hopefully even some video messaging again too.

Stay tuned, we’ve got great projects on the way – and working together, we’ll continue to stand for the Constitution and your liberty in 2015 and beyond!

Thank you for all your support!

]]>http://tenthamendmentcenter.com/2014/05/31/help-us-celebrate-our-8-year-anniversary/feed/13Enumerated Powers of Stateshttp://tenthamendmentcenter.com/2009/10/08/enumerated-powers-of-states/
http://tenthamendmentcenter.com/2009/10/08/enumerated-powers-of-states/#commentsThu, 08 Oct 2009 18:48:42 +0000http://www.tenthamendmentcenter.com/?p=3337Editorâ€™s Note:In an effort to continually expand the Tenth Amendment Center as a forum for education and research, we are pleased to announce the second installment of our â€œpublicationsâ€ section. This paper, â€œThe Enumerated Powers of States,â€ by Rob Natelson, is a fantastic resource for understanding the principles of delegated powers.

It was originally published in 2003 in the Nevada Law Journal.

Introduction:

“The most numerous objects of legislation belong to the States. Those of the National Legislature [are] but few.”
–Rufus King, at the Federal Constitutional Convention

In constitutional form, the federal government is one of enumerated powers, and all powers not enumerated are reserved exclusively to the states and the people. The federal government’s enumerated powers have been construed so broadly, however, that the modern student may be pardoned for asking if anything really has been reserved. Even forty years ago, Professor Lindsey Cowen could say “As things now stand, there may not be any powers which are ‘not delegated to the United States by the Constitution,'” and, of course, the federal government has grown a good deal since then. Over the past century, the power to regulate commerce has come to include the power to regulate agriculture, the power to tax has become the power to control inheritances, and the power to spend for the “general Welfare” has enabled the federal government to create programs to inculcate and educate, as well as for many other purposes.

The proffered legal basis for most of this expansion of federal power is the wording of the original Constitution. Subsequent amendment justifies relatively little of it. This fact, in turn, raises the oft-argued question of whether the powers granted the federal government in the original Constitution, especially as modified by the Ninth and Tenth Amendments, really encompass such subjects as agriculture, education, health care, and the like.

The drafters of the Constitution chose to enumerate the powers of the federal government but not, with a few procedural exceptions, the exclusive powers of states. However, that decision should not be understood as implying that exclusive state powers were narrow, but rather that they were vast. As the drafters explained, they had decided not to enumerate the states’ reserved powers for the same reasons they had decided not to include a bill of rights: first, the reserved powers were too extensive to enumerate; second, a discrete list would encourage the pretense that the federal government could act everywhere else.

On the other hand, if we did have an enumeration of exclusive reserved state powers, perhaps it would enable us to understand more precisely the scope of the granted powers. Such an enumeration also could shed light on basic principles of American federalism. For example, an enumeration might help us determine whether it is constitutionally true, as is sometimes claimed, that growing national economic interdependence justifies more expansive interpretation of federal powers. Put another way, an enumeration could help us determine whether the presence of externalities – spill-over effects – from one state to another creates a constitutionally defensible reason for further central control.

In point of fact, leading federalists left in the historical record some rather specific enumerations of the reserved powers of states. They offered these lists as part of the basis of the political bargain by which the Constitution was ratified. As such, these lists help us divine the actual meaning of such phrases as “general Welfare” and “Commerce . . . among the several States.”

Surprisingly, there has been almost no attention in the legal literature to the federalists’ enumeration of state powers for the benefit of the ratifying public. In this Article, I distill the essence of these enumerations for the modern reader. After doing so, I conclude that the listed items strongly suggest that a guiding principle of American federalism is a Coasean one: externalities and/or interdependence, without more, generally do not serve as constitutional justifications for further centralization.

Professor Natelson teaches Constitutional Law, Legal History, Advanced Constitutional Law, Remedies, and a seminar on the First Amendment. He is a recognized national expert on the framing and adoption of the United States Constitution, and on several occasions he has been the first to uncover key background facts about the Constitutionâ€™s meaning. He has written for some of the nationâ€™s most prestigious academic journals and publishers. Moreover, his work is frequently cited in top journals, such as Harvard Law Review, Yale Law Journal, Michigan Law Review, and Georgetown Law Journal. He also edits the web page, The Scholarship of the Original Understanding of the Constitution, and collected and edited the material that forms the Documentary History of the Ratification of the Montana Constitution.

Copyright, Robert Natelson, Nevada Law Journal

]]>http://tenthamendmentcenter.com/2009/10/08/enumerated-powers-of-states/feed/31The Original Meaning of an Omissionhttp://tenthamendmentcenter.com/2009/07/27/the-original-meaning-of-an-omission/
http://tenthamendmentcenter.com/2009/07/27/the-original-meaning-of-an-omission/#commentsMon, 27 Jul 2009 07:50:53 +0000http://www.tenthamendmentcenter.com/?p=2550Editor’s Note: This scholarly study, “The Original Meaning of an Omission: The Tenth Amendment, Popular Sovereignty and “Expressly” Delegated Power,” by Kurt T. Lash, is one of the finest examples of Tenth Amendment research available.

It was published in 2008 in the Notre Dame Law Review, which allows individuals and non-profit institutions to distribute it widely (please see copyright notice on the paper for full details).

Abstract

Today, courts and commentators generally agree that early efforts to strictly limit the federal government to only expressly enumerated powers were decisively rebuffed by Chief Justice John Marshall in McCulloch v. Maryland.

According to Marshall, the fact that the Framers departed from the language of the Articles of Confederation and omitted the term “expressly” suggested that they intended Congress to have a broad array of implied as well as expressly delegated powers.

As Supreme Court Justice Joseph Story later wrote, any attempt to read the Tenth Amendment as calling for strict construction of federal power was simply an attempt to insert “expressly” into the text. Today, Marshall’s point regarding the significance of this omitted term is probably one of the least controversial claims about the original understanding of Tenth Amendment as currently exists in legal commentary.

It is also almost certainly wrong.

James Madison, Alexander Hamilton, early Supreme Court Justice Samuel Chase and numerous other members of the Founding generation regularly inserted into their description of federal power the very word that Marshall insisted had been intentionally left out. According to these Founders, Congress had only expressly delegated power.

Upon investigation, it turns out that this rephrasing of the Tenth Amendment actually reflects the original understanding of the text and its underlying principle. Completely missed by generations of Tenth Amendment scholars, the addition of the phrase “or to the people” to the Tenth Amendment ensured that the Clause would be read as a declaration of popular sovereignty.

According to this theory of government, the sovereign people were presumed to retain all powers not expressly delegated away. Repeatedly stressed by advocates of the Constitution as representing the proper construction of federal power, the principle of “expressly delegated powers” meant that Congress could utilize no other means except those necessarily or clearly incident to its enumerated responsibilities.

Consistently read in combination with the Ninth Amendment’s declaration of the retained rights of the people, the Tenth Amendment was broadly understood to establish a rule of strict construction of federal power – the very interpretive principle rejected by John Marshall in McCulloch v. Maryland.

One of the nation’s leading scholars of constitutional law, Professor Kurt T. Lash is honored as the newest recipient of the Alumni Distinguished Professor of Law at the University of Illinois College of Law, where he directs the Program in Constitutional Theory, History, and Law. Previously, he was the James P. Bradley Chair of Constitutional Law at Loyola Law School in Los Angeles, CA.

Professor Lash focuses his scholarship on constitutional law, theory, and history, and his work has appeared in some of the top law reviews in the United States, including the Stanford Law Review, Virginia Law Review, Georgetown Law Journal, Northwestern Law Review, and Texas Law Review. His recent book, The Lost History of the Ninth Amendment, was published in 2009 by Oxford University Press.